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GOP Escalates Defense, Denial, Downplaying of January 6 Insurrection; Supreme Court Issues Ruling on Affordable Care Act; Supreme Court Rules on Case of Catholic Agency Refusing to Work with Same-Sex Couples. Aired 10-10:30a ET

Aired June 17, 2021 - 10:00   ET




POPPY HARLOW, CNN ANCHOR: Top of the hour, good morning, everyone, I'm Poppy Harlow in New York.

JIM SCIUTTO, CNN ANCHOR: And I'm Jim Sciutto live in Geneva, the site, of course, of the crucial Biden/Putin summit. What did they go home with? What are they bringing home as a accomplishments or losses? We're going to speak to the opposition leader in Belarus, one of the country's -- one of the human rights issues that Biden raised with Putin.

HARLOW: We look forward to that.

And back here at home, the push by some Republican lawmakers to downplay and try to completely change the narrative of the attack on the U.S. Capitol on January 6th now facing major blowback this time by the very people they claimed to support, police officers.

One of those officers, Michael Fanone, who defended the Capitol that day, was dragged down the Capitol steps, shocked several times with a stun gun, beaten with a flag pole and suffered traumatic brain injury and a heart attack. Well, this morning, he told CNN about the tense encounter that he had with Republican Congressman Andrew Clyde, who recently said the January 6th looked like a normal tourist visit.


OFFICER MICHAEL FANONE, D.C. METROPOLITAN POLICE, DEFENDED CAPITOL ON JANUARY 6: I simply greeted him, extended my hand. He stared at me, refused to shake my hand. He said that he didn't know who I was. I introduced myself. I said, my name is officer Michael Fanone. I'm a D.C. Police officer and I fought to defend the Capitol on January 6th. And I explained to him some of the injuries that I suffered as a result of that. He just stared at me, turned away.


HARLOW: Our Jessica Dean is on this story this morning. Jessica, Officer Fanone is calling out Republicans. He says they are -- I mean, they are lying, those that say this didn't happen about the January 6th attack but it's shocking what happened to him when he went to shake Clyde's hand.

JESSICA DEAN, CNN CONGRESSIONAL CORRESPONDENT: It is shocking. And to hear him tell it even more so, Poppy, to say that he put his hand out and waited to shake his hand. And then he later said that after that encounter, the elevator opened and the congressman ran into it, Fanone said, like a coward. Those were his words.

He has certainly been up here and been trying to make sure that especially House Republicans but other Republicans as well who refused to admit the facts about what happened here on January 6th, during the insurrection, he wants to make sure they are very aware of what he gave up. He suffered that traumatic brain injury, a heart attack.

Here is more of what he had to say on New Day. This is Officer Fanone.


FANONE: I'm not here to make this a political issue. It just so happens that one party is lying about what thousands of officers experienced that day on Capitol Hill. I'm going to confront anyone that lies about that day because while these members are betraying their oath, thousands of D.C. Police officers and U.S. Capitol Police officers were fulfilling their oath and continue to do so every day.


DEAN: And just to give everyone some context about the latest iteration of all of this, there were 21 Hosue Republicans who voted against giving those police officers the congressional gold medal for their efforts here on January 6. They voted against that yesterday. Congressman Clyde was one of the 21. He simply wouldn't even answer when asked why he voted against it.

Some of the others, Poppy, have gone down to semantics about how they don't like it being called insurrection. They don't believe it was an actual insurrection. We know that Clyde had said this looked like a normal tour visit. If you look at videos, especially new video that we're getting that a judge released just last week --

HARLOW: I'm sorry to interrupt you, Jessica Dean, on Capitol Hill, so sorry. We have significant breaking news.

This from the Supreme Court, we had been waiting for this decision to come down. Our Chief Legal Analyst Jeffrey Toobin is with me as we wait.

Obamacare, this is the decision from the high court, Jeff, on Obamacare and this issue of severability, and can you strike down part of the law or do you have to get rid of the whole thing? As we wait for the decision here, walk us through how we got here.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: For the third time, the Supreme Court of the United States is deciding the fate of Obamacare and the justice who is writing the decision, and to be honest, I don't know who it was because it's happening as we speak, and there are no cameras allowed in the courtroom, but we know that the decision in California v. Texas, which is the name of the case, is coming down as we speak, and we will know the result in a handful of minutes.


TOOBIN: But it is difficult to overstate the stakes in this case.

HARLOW: I think we got it, Jeff. I'm sorry. Good point to jump to Jessica on. Jessica, where did the justices come down?

JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Well, Poppy, the Supreme Court dismissing this challenge to the Affordable Care Act. They are saying that the plaintiffs in this case, who were the Republican-led states, so the attorneys general of these various states, including Texas, who had been challenging this law for several years, it's gone up through the courts.


The Supreme Court here saying, they don't have standing to challenge this law. So, for now, the law will stand until, potentially, another challenger, someone different, brings a case.

This is a significant victory, if you will, for the millions of Americans who have gained health care coverage under the Affordable Care Act. We've seen President Biden in just the first six months of his presidency, really focus in on the Affordable Care Act. He celebrated the anniversary of the Affordable Care Act just a few months ago. He opened up the exchanges. He extended the time that people could get on the exchanges to sign up for health care until August. So, this is a significant victory for the Biden administration, that urged the Supreme Court not to strike this law down.

Interestingly here, as well, is the vote count. It's a 7-2 vote count with conservatives and liberals joining. It was Alito and Thomas, those justices, dissenting. So, really, deciding this case on a technical issue that results in the entire law remaining.

There were multiple issues in this case. The first one was -- did the Republicans have standing to even challenge this law? The Supreme Court deciding it on that issue and not going into the broader issues that were asked here, whether or not the law was now unconstitutional because the individual mandate had gone down to zero dollars. That basically means that people who didn't sign up for health insurance, they didn't have to pay any money.

And that's how this latest challenge came about. People saying, well, if the penalty for not getting insurance is zero, well, that essentially makes it null and void. So we're going to challenge it here. But the Supreme Court not even getting to that issue and really going on the baseline issue of standing, which is a procedural issue. And, in effect, holding this entire law up, allowing it to stand. The Affordable Care Act will stand here, Poppy. And like I said, a victory for the Biden administration as well as the 20-plus million Americans who have gained coverage under this law. So it will remain, according to the Supreme Court.

HARLOW: I mean, you're so right, Jessica. And, Jeffrey Toobin, that's a key point because 20 million Americans stood to lose their health coverage without a plan in place to replace, should this be struck down, but no standing because they couldn't show an injury, Jeffrey, essentially, here.

TOOBIN: Right. Under Article 3 of the Constitution, the federal courts can only hear what are known as cases and controversies. That's the rule. And as the Supreme Court has interpreted that provision, they have said, look, you can't bring a case just because you're interested in the outcome, just because you think it's an important issue. You have to show that the issue in the case, the legal issue in the case affects you, that you have what they call an injury in fact.

And what the Supreme Court said today, I haven't read the opinion, obviously, but I knew the argument in this case, which is that these states were not injured by the fact that Obamacare gave health insurance to these people funded by -- largely by the federal government. That's the legal issue in this case.

The political issue, and the Supreme Court is also a political body, they get to duck a lot of the most controversial aspects of the Obamacare law. By deciding the case on standing, they avoid all those complicated legal issues, which are very politically fraught.

I have no doubt that the conservative states and people in the conservative states and the politicians in the conservative states will figure out another way to challenge the law. They will find a plaintiff who does have standing and this will work its way through the courts again. So this is a huge, huge victory for Obamacare but it is not the end of the story on legal challenges to Obamacare.

HARLOW: For sure, but the fact --

SCHNEIDER: This is the third time that the Supreme Court has found a way to keep the Accordable Care Act intact. And they've always sort of picked at something in the case, in this case, standing, to find a way to keep the law intact.

HARLOW: Yes. That's exactly -- you read my mind, exactly the point I was going to make. Withstanding up three times gives it a pretty good track record here. We'll see what comes next.

Jeffrey Toobin, okay, so, Jess laid out the fact that you had two dissenters, Alito and Thomas. It's super interesting that Justice Amy Coney Barrett sided with the liberals on this, given, Jeffrey, what she said before she was a justice about Roberts' initial decision on Obamacare in the first challenge, claiming that, I think, it was a book review on it. She said that, at that point, Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute.


But now she is on the other side of it.

TOOBIN: Well, it is fascinating that three -- that both -- three Republican-appointed justices, Chief Justice Roberts, Brett Kavanaugh and Amy Coney Barrett, voted with the liberal members. Well, I guess there's a fourth too. There's a fourth -- it was a 7-2 opinion. So, also Neil Gorsuch voted to uphold the law, with Sonia Sotomayor, Elena Kagan and Stephen Breyer.

So I am sure you'll start to see among conservatives, is Amy Coney Barrett showing dreaded science of moderation. It's very early in her tenure to suggest that. And the fact that this was a standing decision, not a decision about the substance of the law, doesn't really suggest that Justice Barrett has changed her opinion about Obamacare but standing is a way of avoiding a lot of those hard questions.

HARLOW: That is a great point, Jeffrey Toobin. And just to be clear here, this decision -- opinion, rather, Jess, was penned by Justice Breyer, which is interesting, and we'll get to that in a moment. But the dissenters were Alito and Gorsuch, just to be real here.

TOOBIN: Really, Gorsuch?

HARLOW: Thomas concurring.

TOOBIN: So, Thomas -- that's even more interesting because Justice Thomas has been about the most vocal critic of the Obamacare law in the earlier Supreme Court opinions. So the fact that he joined on the standing issue is particularly interesting.

If I can add one little point here --


TOOBIN: Is that conservatives as a rule, and this was something that Chief Justice Roberts has been affiliated with his entire career even before he came and judge, they tend to view standing more narrowly than liberals do. They tend to say, you don't have the right to bring this case. They want to narrow the range of issues that the Supreme Court deals with. It is not a huge surprise that you see Chief Justice Roberts and Brett Kavanaugh in the majority on this case but it is somewhat of a surprise to see Justice Thomas and Justice Barrett here.

HARLOW: Yes, okay. Jeff, I'm going to give you a second to read the opinion and bring out the nuggets that stand out to you. You're welcome.

Let's go to our colleagues, Joan Biskupic, John Harwood at the White House.

Joan, let me start with you. You know this inside-out. You know Roberts, the chief justice, inside-out, who was a key vote the first time around on this. What's your takeaway? JOAN BISKUPIC, CNN SUPREME COURT ANALYST: This is really a victory for John Roberts and for the Roberts court. It shows it not being ideologically driven here, to have this cross group third time, this time, he assigned to Justice Stephen Breyer, who spent so much in our sites. We're wondering if he's going or not going. And he's obviously taking this big role here and getting all these other people onboard with only Justice Alito and Gorsuch dissenting. Really important, try to close the door finally on these three different challenges, 2012, 2015, and now.

And as these dissenters said, it's as if it's being rewritten by the court, but it's not. It's saying this was an unrealistic challenge, shouldn't have been brought in the first place, goodbye maybe forever now.

HARLOW: We do have some of the opinion that I'd like to read. And, again, this was written by Breyer, which is interesting because of growing liberal calls from some for him to retire after this term. He writes in this majority opinion, quote, for these reasons, we can conclude the plaintiffs in this suit failed to show a concrete, particularized injury fairly traceable to the defendant's conduct in enforcing the specific statutory provision that they attack as unconstitutional.

John Harwood, at the White House, it's the Biden White House, Biden, that was the vice president during the Obama terms, when this was their big first legislative push. It's got to be a big celebration behind you or will be, to have this upheld a third time.

JOHN HARWOOD, CNN WHITE HOUSE CORRESPONDENT: Well, absolutely will be, and one of the most overlooked early successes of the Obama administration has been his success through the American rescue plan and executive actions that he's taken, in terms of extending open enrollment, to shore up Obamacare.

Remember, Donald Trump, in addition to trying through the Republican Congress to repeal it altogether, tried to batter and weaken the law progressively over four years. The law proved more resilient than many Republicans had expected. But enrollment in Obamacare marketplaces did decline from the 2016 peak.


But now, we have reached a point early in the administration, even before this decision, where the number of people being covered under the provisions of Obamacare is now more than it has ever been, more than it was at the height during Barack Obama's presidency. So that's a significant victory for them.

I do think it's important when we talk about the legal issues, and Joan can speak to this better than I can, but as I followed this case through the process, it was clear to me that legal experts on both the left and the right regarded this case as not having a lot of merit to begin with. That the idea, if you set aside the procedural issue, the argument essentially was, if you take the penalty for the individual mandate down to zero, the entire law must fall. That was not an argument taken particularly seriously. And in the oral arguments last fall, the justices, Roberts and others, I believe Kavanaugh as well, signaled that, in fact, they didn't take that argument seriously.

So the only question yes about this was, once you got a 6-3 court, was that going to be enough to persuade people to overcome weaknesses in the argument and just do what conservatives have wanted? They did not do this. In the meantime, this new president, Joe Biden, has been strengthening the law. It's a good day for them.

And I will just close with this. As Joe Biden returns to the White House, on issues from police reform, to voting rights, to infrastructure, they are beginning to see some signs of possibility. We have a lot of talk about their agenda having been stalled or dead. It's not achieved by any means but they are seeing some possibility of breakthroughs with things like Stacey Abrams endorsing the Joe Manchin voting rights compromise this morning, the bipartisan compromise on infrastructure and progress on police reform. So, the Biden White House is feeling pretty good today.

HARLOW: I bet.

Dana Bash, to you, let's talk about the politics of this. I'm just at the part of President Obama's book, A Promised Land, where he recounts Rahm Emanuel and David Axelrod telling him, if you lose this fight, Mr. President, on getting Obamacare through, your presidency will be severely weakened. He said, well, let's make sure that doesn't happen. Do remember that? And now, not only did he get through, now it has withstood three different tests in the highest court. What are the politics of this?

DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: The politics of this are fascinating because of how much the politics around the ACA, Obamacare, have changed just in the last several years. It wasn't that long ago, that Republicans' number one issue was repealing Obamacare. It was what they just beat the drum on over and over again on the campaign trail and in Congress. When Republicans were in charge of the house, they passed a version of repealing Obamacare more times than any of us can even count. And then finally, when it had that one, you know, sort of fatal vote in the United States Senate, it was that now famous moment when John McCain cast one of his last votes and put his thumb down and he ended it. So, that was, you know, sort of the drama of it.

But the reality is, as John was talking about, it has become so -- Obamacare has become so entrenched in the fabric of America at this point, you know, what, more than ten years later, that it is harder for Republicans to pull back. It is harder for Republicans to pull back the idea of this benefit or this option from the American people. And so the politics have changed. It's not that you don't hear the Republicans talking about health care at all but a lot less and almost never in a prominent way about repealing Obamacare.

And so that's why the court has been the focus because, legislatively, certainly now, with Democrats in control of the Congress and the White House, that was a big roadblock for them. HARLOW: That's a great point. Jeffrey Toobin, I know you've had a minute to read some of the majority opinion. I would like to read part of the dissent and get you to weigh in on that, the dissent again coming from Alito and Gorsuch. Here is what they write. No one can fail to be impressed to which the lengths to which this court has been willing to defend the ACA against all threats. The penalty is a tax, the United States is a state and 18 states who bear costly burdens under the ACA cannot even get a foot in the door to raise a constitutional challenge. So a tax that does not tax is allowed to stand and support one of the biggest government programs in our nation's history. Fans of judicial inventiveness will applaud once again, I must dissent.

And then Justice Alito writes, in all three episodes, meaning all three challenges of the ACA, the Affordable Care Act, facing a serious threat, the court has pulled off an improbable rescue.


What do you make of that?

TOOBIN: Well, I agree on improbable because given how the initial oral argument went in the first challenge, I thought the law was doomed. But, you know, this just shows the enormous frustration of both these two conservatives on the Supreme Court and conservatives generally in the country that they cannot kill this thing. They have been trying to kill Obamacare legislatively, judicially, through the executive branch, for now, a decade.

And it is an improbable act of survival, I think, given the way conservatives have dominated all three branches of government during that period. But the fact is through some political aspects, some legal aspects, the law has survived.

And we sometimes talk about these legal issues as if they are abstractions about what does Article 3 of the Constitution mean, what is an injury in fact under Article 3? This is about 20 million people who would lose health insurance tomorrow if this case had gone the other way. I mean, this case had such enormous --

HARLOW: Right, without another plan, without anything to replace it.

TOOBIN: They would have lost health insurance. That's what would have happened. And don't think that these justices didn't know that. And John Roberts is someone, as Joan knows better than anyone, since she wrote his biography, he is someone who is an exquisite legal craftsman but he also someone who understands they way politics works in this country. And he was not about to have the Supreme Court of the United States throw the entire country into total chaos as a result of a ruling like that.

HARLOW: That's such a great point. I'll get you in just one minute, John Harwood. But, Joan, just to htat point, the fact that this s a 7- 2 decision, coming from Breyer, who said at Harvard just in April, that the court should not be viewed politically, and a chief justice who has lamented how politically this court has been viewed, that's notable, is it not?

BISKUPIC: It really is, Poppy. Back in 2012, when John Roberts singlehandedly saved it by voting with the liberals for a 5-4 ruling, I remember critics, including The Wall Street Journal, said this is a John Roberts special. This is not a John Roberts special. Stephen Breyer is writing it. 7-2, that's really important right now, especially at the time of the country and for this Roberts court, with three new Trump appointees, so I would say that definitely.

The other thing, to respond to John Harwood's comment about just what the court did here by really closing the door, we thought that maybe the court would say that the individual mandate was not constitutional but separated from the rest of the law. And it didn't. It was just like a sweeping shutting the door to these really unlikely, improbable arguments that, really, from the start, even some conservatives thought were not going to go anywhere. And turned it they didn't.

HARLOW: Okay. John Harwood, okay -- I'm so sorry again. They're telling me that we have Dr. Zeke Emanuel on the phone. Hold that what I know is a good thought and I'll get to it in a moment.

Can you hear me, Dr. Emanuel?

DR. EZEKIEL EMANUEL, FORMER WHITE HOUSE POLICY ADVISER (voice over): I am here, yes, I can hear you perfectly.

HARLOW: Hi, it's good to have you here for some context. You were the former White House policy adviser entrenched in all of this. What are your thoughts on this decision?

EMANUEL (voice over): The Supreme Court does not want to weigh in on this and I think challenges are dead. They are not interested in re- litigating this. You have got a majority that is basically taking every opportunity to say no. The ACA is law of the land and we're really not going to be interested in turning it over.

And we should remember that when President Biden came in and extended the open enrollment period, we've had over 1 million new enrollees into the Accordable Care Act exchanges, signaling that even without a mandate, lots of people want health insurance. And this is a vehicle for them to get health insurance. And so I think the Supreme Court doesn't want to upset that applecart.

And you might remember that Samuel Alito, Judge Alito, in the questioning, said, well, the original issue about the mandate, that was before we understood how people would react, and said, now time has passed and we see people want health insurance without the mandate, that changes the color of the case.


HARLOW: It's a very interesting point because this was argued before the court in November. So it's been a while. If you could, Dr. Emanuel, stay on with us, let me finally get to my colleague, John Harwood, at the White House. John? HARWOOD: What I wanted to do, Poppy, was just provide some perspective to punctuate the political points that both Dana and Jeffrey were making. We all remember that when new Senator Ted Cruz was trying to strangle Obamacare in its crib, when it was just about to launch, and he was trying to persuade Republicans, we have got to stop this, we have got to shut down the government in order to stop it. What he said was, if this law gets going, and people start seeing the benefits, they are going to get hooked on the benefits. That is precisely what has happened.

That is why John McCain turned thumbs down when -- as well as Lisa Murkowski and Susan Collins, I believe was the other, on that vote to repeal Obamacare in 2017. It was a major reason why Democrats won the House back in 2018 because they were defending the law against that Republican attack. And it undergirds what the Supreme Court has done, it helps explain what the court has done and also helps explain why Joe Biden has had success shoring it up.

People have had an appreciation over the years since it passed that they need health insurance. This provides a vehicle for people that could not get affordable health insurance otherwise to get it. And the American people, while it's not overwhelmingly popular, it has become more popular overtime and people want to keep it.

HARLOW: Okay. We're going to get back to Obamacare in a minute, but we have another significant decision from the Supreme Court. Jessica, what is it?

SCHNEIDER: Yes, Poppy, a major religious liberties decision. This case involved a Catholic foster agency that refused to recruit same- sex couples. Because of that, the city of Philadelphia cut the contract saying that they were violating the city law that bans discrimination on the basis of sexual orientation. And today, the Supreme Court saying that Philadelphia violated the First Amendment rights of that Catholic foster agency. This is a big win for religious liberty advocates. Interestingly, it's also a unanimous decision.

We're still reading this decision but it is significant because this is allowing a Catholic foster agency to discriminate against same-sex couples who want to foster through them, specifically. One of the arguments that was made was that other foster parents or potential foster parents who are same-sex couples, they can go to other agencies. They don't have to contract or work through the Catholic foster agency. That was the argument made by the Catholic foster agency here, and they have prevailed. The Supreme Court saying that, in fact, Philadelphia did violate the First Amendment free speech and freedom of religion rights of this Catholic organization, who refused to recruit these same-sex couples.

So I'm still reading through this opinion. But what is interesting here is that this is notable because the Supreme Court last term also decided three major cases in favor of religious groups. And, in fact, this term, we've seen the Supreme Court repeatedly side with religious institutions when it comes to COVID restrictions. A lot of cases have come before them in the form of emergency orders. But the court said, no, the state cannot burden religious institutions in imposing these COVID restrictions.

So this is a court now that has come down firmly on the side of religious institutions notably here. This is saying that Catholic organizations, other religious organizations, do not have to comply with these anti-discrimination laws, do not have to allow foster parents who are same-sex couples in this particular case, because it violates their First Amendment, their free speech and their free exercise of religion. Poppy?

HARLOW: Okay. Jessica, I'll let you read more.

Jeffrey Toobin, our Chief Legal Analyst, to you. This goes beyond Philadelphia, way beyond Philadelphia. This is revisiting of a significant precedent. Why does it matter broadly for the country so much?

TOOBIN: Well, this is a big legal cause of conservatives in America, which is telling religious institutions and religious people that they don't have to follow the laws that everyone else has to follow. Think about the Hobby Lobby case of a few years ago, where a big company, the Hobby Lobby company, which is a private company, owned by people who have religious objections to certain forms of birth control, which is usually covered by the Affordable Care Act. The Supreme Court said, they don't have to subsidize contraception for their employees if they have religious objections to it.